Kenneth L. Marcus is an American attorney,academic,and government official. He is the founder and leader of the Brandeis Center. He was the Assistant Secretary for Civil Rights at the United States Department of Education from August 6,2018 through July 9,2020,after which he resumed his position at the Brandeis Center.[1]
Early in his career,Marcus served as lead counsel for the Berkeley Three,three neighbors in Berkeley,California who had protested against a planned low-income housing project for the homeless in their neighborhood in 1993 by the U.S. Department of Housing and Urban Development (HUD). A housing rights group complained about the protests and four federal HUD officials began investigating the neighbors. The neighbors,represented by Marcus and the Center for Individual Rights,sued the officials alleging that the investigation had violated their First Amendment rights. In 1998,a federal district court ruled in favor of the neighbors and the verdict was upheld by the U.S. Court of Appeals for the Ninth Circuit in 2000[4] which,in a unanimous opinion,held that the investigating officials "could not have reasonably believed their actions to be consistent with the First Amendment." Publicity regarding the case forced HUD to change its policy on fair housing investigations.[5]
Fair Housing Enforcement
Marcus served in various roles in the George W. Bush administration,beginning as General Deputy Assistant Secretary at the Office of Fair Housing and Equal Opportunity.[6] Marcus also joined with Department of Justice officials to announce the resolution of various high-profile disabilities lawsuits. In a congressional hearing in 2002,he testified about the agency's performance under his stewardship. He said the agency's aged-case backlog had reduced from 80 percent to 37.1 percent and that HUD increased the number of accessible housing units for a person with a disability by over 1200 through major cases in the District of Columbia and Boston. He also announced new initiatives to address predatory lending and lending discrimination,as well as enhanced attention to housing problems faced by persons in the Southwest border area.[6]
In May 2004,Marcus issued a letter admonishing recipients of federal education funds that in order to comply with Title IX they must designate a Title IX coordinator because OCR had found that some institutions were not complying with the requirement. Members of the National Coalition for Women and Girls in Education had urged OCR to issue such guidance to strengthen Title IX. The Feminist Majority Foundation welcomed the letter.[8]
Marcus joined with then-Assistant Attorney General for Civil RightsRene Alexander Acosta to issue guidance warning school districts to cease racially segregated activities. Their joint letter warned that practices such as holding segregated high school proms or naming separate race-based sets of recipients for senior-year honors (such as homecoming queen) "are inconsistent with federal law and should not be tolerated."[9]
In an official letter,Marcus also clarified in 2004 that OCR would interpret Title VI and Title IX as if they protected the rights of ethnic groups that shared a religious faith,to the same extent as if they did not share a common faith. The policy has been applied to Jewish,Muslim,and Sikh students.[10] It was cited and strengthened by the Obama,Trump and Biden administrations,eventually becoming coined as the “Marcus Doctrine.”[11][12][13]
In October 2004,Marcus issued a notice amending the regulations implementing Title IX of the Education Amendments of 1972. The purpose of the notice was to facilitate for school districts to offer single-sex public elementary and secondary education.[14]
James S. Murphy,in The Atlantic wrote about Marcus's service at OCR:"With Marcus,the administration started taking a stronger approach to enforcing civil-rights laws. During his term,he issued guidance reminding schools of the need to have a Title IX officer and clarifying that Title VI also protected students of faith from discrimination."[15] Marcus' work spearheaded OCR's efforts to better enforce and protect civil-right laws in America.[16] Marcus was credited by The Wall Street Journal with having taken "an agency in disarray" that lacked "basic management controls," and turned it into an agency that "deserves a medal for good governance."[17]
Academic career
After he left government,Marcus served as the Lillie and Nathan Ackerman Visiting Professor of Equality and Justice in America at the City University of New YorkBaruch College School of Public Affairs. He taught courses on Diversity Management,Anti-Semitism and Civil Rights Law,and Law for the Education Administrator. He also oversaw the Ackerman Lecture Series,which invites intellectuals and public figures to spur debate and new thinking on equality and social justice.[16]
While serving on the CUNY faculty,Marcus also directed an anti-Semitism program at the Institute for Jewish and Community Research.[citation needed]
In 2012,he was featured on The Forward's "Forward 50" list of 50 American Jews who made a significant impact on the Jewish story in the past year. The magazine characterized him as "a former staff director at the U.S. Department of Education,Marcus,46,has emerged as a vocal proponent of using federal civil rights law to combat perceived campus anti-Semitism in the context of the Israel debate" and mentioned his use of Title VI of the Civil Rights Act of 1964 to counter campus anti-Semitism.[18]
Marcus opposes the BDS movement that calls for comprehensive boycotts against Israel,similar to those imposed on South Africa during the Apartheid era. He believes that BDS is an attempt to "resist the normalization of the Jewish people." However,determining whether BDS is anti-Semitic is a difficult question to answer,according to Marcus.[19] He has therefore developed a list of criteria to determine when,in his opinion,BDS becomes anti-Semitic. The list includes examples such as unconscious hostility towards Jews,and the transmission of negatively coded cultural myths.[19]
Described as “The Man Who Helped Redefine Campus Antisemitism,”Marcus was featured on the front page of the Sunday New York Times on March 24,2024. The article highlights his reasonings for pursuing civil rights law,work within the U.S. Department of Education,and his push for the acceptance of the IHRA working definition of antisemitism. Marcus is described as “the single most effective and respected force when it comes to both litigation and the utilization of the civil rights statutes”to combat antisemitism by a visiting professor at Brown University,who once served on the Brandeis Center board. The Times also cites counterarguments against Marcus,specifically from pro-Palestine groups and individuals. For example,lawyer Radhika Sainath explained that campus antisemitism cases “force universities to investigate,condemn and suppress speech supporting Palestinian rights,because they are so fearful of bad press and donor backlash.”Other critics criticize Marcus’s efforts to win acceptance for the IHRA Definition as cracking down on free speech.[20]
Education lawsuits
Marcus has helped file or otherwise support Title VI complaints filed with the OCR,all related to the Israeli-Palestinian conflict. Six separate complaints have been filed against UC Irvine,UC Santa Cruz,UC Berkeley,Rutgers University,Barnard College,and Brooklyn College. These complaints alleged that certain activities by pro-Palestinian activist campus groups constituted violations of Title VI anti-discrimination provisions through "harassment" or "intimidation" that "targets" and creates a "hostile educational environment" for Jewish students.[citation needed]
In the first complaint Marcus filed in 2011,he claimed the chair of the Asian and Middle Eastern Cultures department at Barnard College had "steered" a Jewish student away from taking a class with Joseph Massad,a Palestinian professor and outspoken critic of Israel. He claimed Massad had created a hostile environment for Jewish students.[18]
University President Lee Bollinger defended Massad and said it was "extremely unfair" he was named in the complaint since he played no part in the alleged "steering." The complaint was dismissed by the OCR for lack of evidence and also noted the student was not even eligible to take Massad's class.[21][citation needed][22]
OCR dismissed four more of Marcus' complaints "with written determination letters stating that the First Amendment protects speech critical of the state of Israel and that such speech does not constitute a civil rights violation." A fifth case was dismissed due to insufficient evidence and a sixth was settled before it was investigated.[23]
Assistant Secretary of Education for Civil Rights
In October 2017,Trump nominated Marcus to Assistant Secretary of Education for Civil Rights to head OCR. The nomination was confirmed by the US Senate in June 2018.[24] Marcus was endorsed by a variety of groups,including B'nai B'rith and The American Jewish Committee,and opposed by groups including The U.S. Campaign for Palestinian Rights and Jewish Voice for Peace.[25]
In September 2018,Marcus reopened a seven-year-old Title VI case against Rutgers University,previously closed by the Obama administration. The Zionist Organization of America welcomed the reopening of the case.[26] In May 2020,nine civil rights groups filed a complaint against Marcus,charging that he had abused his authority and side-stepped department policy by reopening the case.[27]Jonathan Tobin wrote such criticisms are "toxic partisanship," and that even Marcus's acknowledge his accomplishments and that he has done "as much,if not more,to fight anti-Semitism on college campuses as anyone in government has ever done."[28]Ian Lustick,writing in The Forward,deplored both Marcus's appointment,and his use of his office,arguing that:"Marcus came to his position not to protect and expand learning opportunities in American educational institutions,but to threaten and narrow them,especially when it comes to open debate about Israel and the Palestinians. And his use of accusations of anti-Semitism in order to silence debate about Israel is being done with the sanction of the President of the United States."[29]
During his time as Assistant Secretary of Education,Marcus led investigations involving sexual harassment in both elementary and upper-level education.[30] “Mr. Marcus...is credited with overseeing the completion of sexual misconduct rules”[31] and he “helped craft new rules for how schools must respond to allegations of sexual harassment and assault.”[32] One of Marcus’s main goals was to “end the false dichotomy of protecting survivors while ignoring due process,or protecting the accused,while disregarding sexual misconduct,”and address imbalances in the handling of sexual misconduct allegations in educational institutions.[33]
Marcus believed that under the Obama administration,sexual misconduct allegations were over-enforced,and that those who were accused of sexual misconduct were often deprived of their right to presumption of innocence and due process.[33][34] Marcus advocated for Title IX enforcement reforms that introduced enhanced procedural safeguards,including the right to a trial including cross-examination and witness testimony for individuals accused of sexual misconduct. These changes replaced the "preponderance of evidence" standard with a "clear and convincing evidence" threshold. Critics have pointed out that the bar of “clear and convincing evidence”is higher than what is used in employment law.[32][33][34]
Additionally,Marcus introduced new Title IX policy regulations,including expanding the definition of discriminatory sexual harassment to include “sexual assault,dating violence,domestic violence,and stalking.”[33] Marcus’s policy also required schools to establish accessible reporting options for anyone to report incidents of sexual abuse,aiming to enhance support for victims.[35] Marcus stated that his regulatory adjustments aim to restore fairness and due process within educational settings while also respecting the rights and experiences of sexual assault survivors.[32]
Marcus has encountered criticism from advocacy groups such as Know Your IX and educational policy nonprofits such as the American Council on Education,who both stated that revoking Obama-era policies towards sexual harassment accusations during the COVID-19 pandemic was inappropriate,and possibly “retraumatizing”to sexual assault victims subjected to cross-examination.[34][33] Proponents of Marcus’s policies have defended these measures,calling the cross examination a “necessary evil”to ensure fairness for all parties involved in Title IX proceedings.[33]
In 2020,the Education Department announced that the Pennsylvania State University had to strengthen sexual misconduct investigation,despite having already faced backlash surrounding their procedures after the Jerry Sandusky controversy. Marcus described Penn State’s handling of sexual harassment cases as “disappointing that so many serious problems have remained at that university system.”[36][37]
Also during his tenure,the Department of Education announced an agreement with the University of Southern California to solve “systemic failures”in wake of the sexual abuse allegations made against George Tyndall,the school’s gynecologist.[38] Marcus sent a 51-page letter to the university to report the findings surrounding sexual misconduct involving students and staff.[39][40]
In one of his biggest cases,Marcus required the Chicago Public Schools to substantially revamp their process for handling sexual violence and harassment cases. This was based on what Marcus called “the most comprehensive investigation”the department’s office for civil rights “has ever undertaken of sexual violence in a major urban public school system.”[41][42]
Under Marcus,the Education Department established a new Center for Outreach,Prevention,Education,and Nondiscrimination (OPEN) within OCR. The purpose of the new initiative was to help schools,educators,and students understand and apply education civil rights laws.[43][44] Critics of the OPEN Center argued that colleges and schools might be leery about cooperating with the Department. One potential barrier to the effectiveness of the Center is that educational institutions may be wary to allow OCR “under the hood”when not required to do so.[45]
After changing Title IX regulations and self-reportedly returning OCR to a “neutral,impartial civil rights law enforcement agency,”[35] Marcus resigned in July 2020 and returned to the Brandeis Center as chairman of the board.[31]
Publications
Books
The Definition of Anti-Semitism,Oxford University Press,2015
Jewish Identity and Civil Rights in America,Cambridge University Press,2010
In November 2012,Marcus testified before the U.S. Commission on Civil Rights as an expert on discrimination against Muslim and Arab Americans. His testimony highlights discrimination in public schools and penal institutions,as well as harmful stereotypes in popular culture.
In June 2024,Marcus testified before the House Ways and Means Committee[46] on the topic of “antisemitism,radical faculty,and the failure of university leadership”[47] on college campuses in the wake of the Israel-Hamas war. He emphasized the need for university leadership to take accountability for “student violent extremism”and “professorial politicization”contributing to Jewish hate on campus.[48]
Notes and references
Related Research Articles
Title IX is a landmark federal civil rights law in the United States that was enacted as part of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. This is Public Law No. 92‑318,86 Stat. 235,codified at 20 U.S.C. §§1681–1688.
Hillel:The Foundation for Jewish Campus Life,also known as Hillel International,is the largest Jewish campus organization in the world,working with thousands of college students globally. Hillel is represented at more than 850 colleges and communities throughout North America and globally,including 30 communities in the former Soviet Union,nine in Israel,and five in South America.
The Office for Civil Rights (OCR) is a sub-agency of the U.S. Department of Education that is primarily focused on enforcing civil rights laws prohibiting schools from engaging in discrimination on the basis of race,color,national origin,sex,disability,age,or membership in patriotic youth organizations.
Sexual harassment in education in the United States is an unwelcome behavior of a sexual nature that interferes with an American student's ability to learn,study,work or participate in school activities. It is common in middle and high schools in the United States. Sexual or gender harassment is a form of discrimination under Title IX of the Education Amendments of 1972. Sexual harassment involves a range of behavior from mild annoyances to unwanted touching and,in extreme cases,rape or other sexual assault.
Antisemitism at universities has been reported and supported since the medieval period and,more recently,resisted and studied. Antisemitism has been manifested in various policies and practices,such as restricting the admission of Jewish students by a Jewish quota,or ostracism,intimidation,or violence against Jewish students,as well as in the hiring,retention and treatment of Jewish faculty and staff. In some instances,universities have been accused of condoning the development of antisemitic cultures on campus.
Bernice Resnick Sandler was an American women's rights activist. She is best known for being instrumental in the creation of Title IX,a portion of the Education Amendments of 1972,in conjunction with representatives Edith Green and Patsy Mink and Senator Birch Bayh in the 1970s. She has been called "the Godmother of Title IX" by The New York Times. Sandler wrote extensively about sexual and peer harassment towards women on campus,coining the phrase "the chilly campus climate".
The "three Ds" or the "3D test" of antisemitism is a set of criteria formulated in 2003 by Israeli human rights advocate and politician Natan Sharansky in order to distinguish legitimate criticism of Israel from antisemitism. The three Ds stand for delegitimization,demonization,and double standards,each of which,according to the test,indicates antisemitism.
Annie Elizabeth Clark is a women's rights and civil rights activist in the United States. She was one of the lead complainants of the 2013 Title IX and Clery Act charges lodged against the University of North Carolina at Chapel Hill,claiming that the institution violated the law by the way they handled sexual assault complaints. Clark and Andrea Pino,then a fellow UNC student and also a victim of sexual assault,launched a nationwide campaign to use Title IX complaints to force U.S. universities to address sexual assault and related problems more aggressively. Clark is co-founder with Pino of End Rape on Campus,an advocacy group for victims of campus sexual assault.
Andrea Lynn Pino (born February 15,1992) is an American women's rights and civil rights activist,author,and a public scholar on issues of global gender based violence,media framing of violence,gender and sexuality,and narratives of survivorhood. She is the queer daughter of Cuban refugees and has stated that she is a survivor of sexual assault.
The Louis D. Brandeis Center for Human Rights Under Law (LDB) is a 501(c)(3) nonprofit organization founded by Kenneth L. Marcus in 2012 with the stated purpose of advancing the civil and human rights of the Jewish people and promoting justice for all peoples. LDB is active on American campuses,where it says it combats antisemitism and anti-Zionism.
The AMCHA Initiative is a non-advocacy group that combats antisemitism on campuses through investigation,documentation,and education in order to protect Jewish students from assault and fear. In that capacity,it has sought to undermine BDS activities on campuses. AMCHA was founded in 2012 by University of California Santa Cruz lecturer Tammi Rossman-Benjamin and University of California Los Angeles Professor Emeritus Leila Beckwith. The term Amcha is Hebrew for "your people" or "your nation."
Families Advocating for Campus Equality (FACE) is an American advocacy group whose stated goal is to ensure fairness and due process for all parties involved in allegations of sexual misconduct on college and university campuses. FACE was started by Sherry Warner Seefeld and two other mothers who say their sons were falsely accused of sexual misconduct on their college campuses.
Title IX of the United States Education Amendments of 1972 prohibits discrimination "on the basis of sex" in educational programs and activities that receive financial assistance from the federal government. The Obama administration interpreted Title IX to cover discrimination on the basis of assigned sex,gender identity,and transgender status. The Trump administration determined that the question of access to sex-segregated facilities should be left to the states and local school districts to decide. The validity of the executive's position is being tested in the federal courts.
Stop Sexual Assault in Schools is a United States non-profit organization that advocates for K–12 students’right to an education free from sexual harassment and sexual assault. Sexual assault and severe or pervasive sexual harassment are types of sex discrimination prohibited under Title IX of the Education Amendments of 1972,a civil rights law that prohibits sex discrimination in any education program that receives federal funding. SSAIS accomplishes its mission by creating and distributing free education programs,filing pro bono civil rights complaints with the Office for Civil Rights (OCR),collaborating with national gender equity organizations,supporting legislative and legal initiatives,working with communities and families to bring schools into Title IX compliance,and educating the media about how sexual harassment and sexual violence in K–12 schools can violate students’rights.
The working definition of antisemitism,also called the International Holocaust Remembrance Alliance definition of antisemitism or IHRA definition,is a non-legally binding statement on what antisemitism is,that reads:"Antisemitism is a certain perception of Jews,which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property,toward Jewish community institutions and religious facilities." It was first published by European Monitoring Centre on Racism and Xenophobia (EUMC) in 2005 and then by the International Holocaust Remembrance Alliance (IHRA) in 2016. Accompanying the working definition,but of disputed status,are 11 illustrative examples whose purpose is described as guiding the IHRA in its work,seven of which relate to criticism of Israel.
The Executive Order on Combating Anti-Semitism,officially Executive Order 13899,is an executive order announced on December 10,2019,and signed the next day by U.S. President Donald Trump. The said purpose of the order was to prevent antisemitism by making it easier to use laws which prohibit institutional discrimination against people based on race,color or national origin to punish discrimination against Jewish people,including opposition to Israel uniquely as a Jewish nationstate without opposition to other nation-states. The definition of antisemitism which is used in the executive order was written by the Holocaust Remembrance Alliance,which defines it as,"...a certain perception of Jews,which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property,toward Jewish community institutions and religious facilities."
With regard to the Arab–Israeli conflict,many supporters of the State of Israel have often advocated or implemented anti-BDS laws,which effectively seek to retaliate against people and organizations engaged in boycotts of Israel-affiliated entities. Most organized boycotts of Israel have been led by Palestinians and other Arabs with support from much of the Muslim world. Since the Second Intifada in particular,these efforts have primarily been coordinated at an international level by the Palestinian-led BDS movement,which seeks to mount as much economic pressure on Israel as possible until the Israeli government allows an independent Palestinian state to be established. Anti-BDS laws are designed to make it difficult for anti-Israel people and organizations to participate in boycotts;anti-BDS legal resolutions are symbolic and non-binding parliamentary condemnations,either of boycotts of Israel or of the BDS movement itself. Generally,such condemnations accuse BDS of closeted antisemitism,charging it with pushing a double standard and lobbying for the de-legitimization of Israeli sovereignty,and are often followed by laws targeting boycotts of Israel.
Anti-Palestinianism or anti-Palestinian racism refers to prejudice,collective hatred,and discrimination directed at the Palestinian people for any variety of reasons. Since the mid-20th century,the phenomenon has largely overlapped with anti-Arab racism and Islamophobia due to the fact that the overwhelming majority of Palestinians today are Arabs and Muslims. Historically,however,anti-Palestinianism was more closely identified with European antisemitism,as far-right Europeans detested the Jewish people as undesirable foreigners from Palestine. Modern anti-Palestinianism—that is,xenophobia with regard to the Arab people of Palestine—is most common in Israel,the United States,and Lebanon,among other countries.
On May 25,2023,the administration of US President Joe Biden unveiled The U.S. National Strategy to Counter Antisemitism. President Biden called his administration's plan the “most ambitious and comprehensive U.S. government-led effort to fight antisemitism in American history.”
Adela Cojab Moadeb is a Mexican-born American activist,author,podcaster,and law student. She is known for advocating against antisemitism and for Zionist causes. Most notably,she is known for her formal complaint against New York University under Title VI of the Civil Rights Act of 1964 for allowing antisemitic activities on campus.
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